MIRZA VIQAS RAUF , J.This regular second appeal in terms of Section 100 of The Code of Civil Procedur e (V of 1908) (hereinafter referred as "CPC") arises out of judgment and decree dated 17 March, 2004, whereby the learned Additional District Judge, Muzaf fargarh, while dismissing the regular first appeal filed by the appellants upheld the judgment and decree dated 27November , 2000 passed by the learned Civil Judge 1 Class, Muzaf fargarh.
2. Epitomized facts necessary for adjudic ation of instant appeal are that respondent No.1 (hereinafter referred as "respondent") instituted a suit for declara tion averring therein that his father namely Makhdoom Haider Bakhsh, who died in January, 1992 was owner of land measuring 859 Kanals 01 Marla falling in Khewat No.336, 355 and 364 situated in the revenue estate of Hanjra and Ghair Musaqil Gharbi Tehsil Kot Addu District Muzaffargarh (hereinafter referred as "suit land") which was gifted to "respondent" in the year 1952 when he was five years old through mutation No.1306 and possession was also delivered to his mother namely Iqbal Begum. As per averments contained in the plaint, after death of father of "respondent", he came to know that his father executed a cancellation document on 25 July, 1970 regarding gift executed in his favour and mutation No.2174 dated 04 February, 1971 was also sanctioned in this regard, as a result, gift mutation No.2189 dated 20 April, 1971 was got sanctioned in favour of the appellants, which are against the law and facts and liable to be cancelled.
The appellants resisted the suit, being the defendants. While submitting their written statement, they controverted the assertions contained in the plaint. The respondent No.2 was, however, proceeded ex-parte.
From the divergent pleadings of the contested parties following multiple issues were framed : ISSUES
1. Whether the suit is barred by time? OPD
2. Whether the suit is not maintainable in its present form? OPDth th st th th th
3. Whether the suit is not correctly valued for the purposes of court fee and jurisdiction if so, its correct valuation for the both? OPD
4. Whether the description of the suit land has not been correctly described in the plaint, if so, its ef fect? OPD
5. Whether the plaintif f is estopped by his words and conduct to file this suit? OPD
6. Whether the plaintif f has no cause of action to file this suit? OPD
7. Whether the plaintiff is owner in possession of the usit land to the exclusion of the defendants No.2 to 6 and the cancellation deed dated 25.07.1970 in respect of the cancellation of gift of the suit land by the father of the plaintiff and on the basis of which mutation No.2174 dated 04.02.1971 and mutation of gift No.2189 by Hyder Bakhsh etc. and on the basis of these entries in the revenue papers in respect of the suit land are illegal, against facts, unauthorized, fictitious, collusive and void, hence liable to be declared not binding upon the plaintiff? OPP
8. Whether the plaintif f is entitled to consequential relief of permanent injunction as prayed for? OPP 8.A.Whetherthe plaintif f is entitled to get possession of the suit land? OPP
9. Relief.
After framing of issues, parties to the suit produced their respective evidence and on completion of the same, suit was decreed vide judgment dated 27November , 2000. The appellants, while feeling dissatisfied from the said judgment and decree preferred a regular first appeal before the learned Addition al District Judge, Muzaf fargarh, which was dismissed vide judgment and decree dated 17 March, 2004.
3. Learned counsel for the appellants submitted that suit was barred by time and though to this effect issue No.1 was framed but same was not attended properly by the courts below. He added that concurrent conclusion drawn by both the courts below is the outcome of gross misreading and non-reading of evidence. Learned counsel, while making reference to the statement of "respondent", who appeared as PW1 submitted that he was the sole witness and his evidence was deficient in all respects. Argued that the "respondent" was estopped by his words and conduct to file the suit.
4. Conversely , learned counsel for "respondent ", while defending the impugned judgment s and decrees submitted that the appellants have failed to prove the cancellation of gift mutation in favour of "respondent ". He added that the appellants have also failed to lead any cogent evidence in support of their claim. Learned counsel maintained that evidence led by the appellants was not confidence inspiring and both the courts below were right in their approach to decree the suit filed by "respondent ". Learned counsel contended that there are concurrent findings of facts recorded by both the courts below , which are completely in consonance with law, warranting no interference by this Court in exercise of appellate jurisdiction, which has a very limited scope in terms of Section 100 of "CPC" .
5. On the other hand, learned law officer adopted the arguments advanced by learned counsel for "respondent".
6. I have heard learned counsel for the appe llants as well as "respondent " at considerable length and also perused the record.
7. By way of suit the "respondent " assailed the vires of revocation deed (Exhibit-P2) which was purportedly executed on 25 July, 1970. The revocation deed was an offshoot of gift mutation No.1306 dated 24 December , 1953 (Exhibit-P1), whereby Makhdoom Haider Bakhsh gifted his property to "respondent ", who was his son. The controversy interse parties thus hinges upon the revocation deed (Exhibit-P2).
8. Before adverting to the validity of revocation deed, it is pertinent to observe that donor namely Makhdoom Haider Bakhsh was father of respondent, who gifted "suit land" through mutation No.1306 dated 24 December , 1953 and at the time of gift, the donee was minor . There is no challenge to the gift mutation which is even evident from the revocation deed. The gift was revoked by way of deed (Exhibit-P2) on account of non-delivery of possession to the donee.
9. The question arises as to "whether under what circumstances a gift can be revoked?" Chapter XI of The Muhammadan Law by D.F. Mulla's deals with the "gifts". In terms of Para 138 hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter. A donor can part with his property through a gift either orally or through a written instrument. Para No.155 of The Muhammadan Law prescribes that no transfer of possession is required in the case of a gift by a father to histh th th th th minor child or by a guardian to his ward.All that is necessary is to establish a bonafide intention to gift. Para No.167 provides eventualities when a gift can be revoked which reads as under :- "167. Revocation of gifts.-- (1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all.
(2) Subject to the provision of subsection (4), a gift may be revoked even after delivery of possession except in the following cases--
(a) when the gift is made by a husband to his wife or by wife to her husband;
(b) when the donee is related to the donor within the prohibited degrees;
(c) when the donee is dead;
(d) when the thing given has passed out of the donee's possession by sale, gift or otherwise;
(e) when the thing given is lost or destroyed;
(f) when the thing given has increased in value, whatever , be the cause of the increase;
(g) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding;
(h) when the donor has received something in exchange (iwaz) for the gift.
(3) A gift may be revoked by the donor , but not by his heirs after his death. It is the dono r's law that will apply to a revocation and not of the donee.
(4) Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even to revoke the gift. "
It is manifestly clear from the above that donor can revoke the gift at any time before delivery of possession and if the possession is delivered then the donor can only revoke the gift through a decree of the court. Reference in this respect if needed can be made to "RIAZ ULLAH KHAN versus ASGHAR ALI and 2 others "(2004 SCMR 1701 ), "Mst. KANEEZ BIBI and another versus SHER MUHAMMAD and 2 others "(PLD 1991 Supreme Court 466). Even this Court in the case of "Mst. NOOR BEGUM and 6 others versus MUHAMMAD AKRAM and 17 others "(2013 MLD 1323 ) has adopted the same principles.
10. After having an overview of the law on the subject, I have no doubt in my mind to hold that revocation deed (Exhibit-P2) is inconsequential and without any substance.
11. While pondering upon the question of limitation, it is observed that in Para No.3 of the plaint, the "respondent" has specifically asserted that donor died in the year 1992 and after his death, he was informed by the appellants about the deed of cancellation. These specific facts which were asserted in plaint and were even deposed by the "respondent", while appearing as PW1, remained unrefuted. The statement of Sabir Hussain one of the appellants, who appeared as DW1 also gives due support to the claim of the "respondent" and affirms that suit was brought well within time from the date of knowledge. The learned Civil Judge, while capsulating the question of limitation framed issue no.1 which was decided in favour of "respondent" and suit was held within time. After having examined the judgments of both the courts below, I am of the considered opinion that mandate of Section 3 of The Limitation Act, 1908 has been properly adhered to by courts below , while forming their concurrent view qua question of limitation.
12. I have examined the judgments passed by the learned Civil Judge as well as learned Additional District Judge and unable to find any misreading or non-reading of evidence. The learned Civil Judge decreed the suit after carefully analyzing the material available on the record. The said judgment was further affirmed by the learned Additional District Judge in appeal filed by the appellants by way of judgment dated 17 March, 2004.
13. This is a regular second appeal which has a very limited scope as provided under Section 100 of "CPC". The concurrent findings cannot be interfered with unless some procedural defect, materially effecting such findings is pointed out by the appellants. Reliance in this respect can be placed on"BASHIR AHMED versus Mst. TAJA BEGUM and others "(PLD 2010 Supreme Court 906)and"MUHAMMAD FEROZE and others versus MUHAMMAD JAMAA T ALI"(2006 SCMR 1304 ).
14. For what has been discussed above, I have no hesitation in my mind to hold that the concurrent findings of facts recorded by both the courts below are neither perverse nor arbitrary , so as to justify the interference inth exercise of jurisdiction contemplated in Section 100 of "CPC". Consequently the instant second appeal, being without any merit is dismissed with no order as to costs.